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Prisoner Education Guide

Prison Legal News: July, 1992

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Volume 3, Number 7

In this issue:

  1. New Ruling May Impact Prison Law Library Policies (p 1)
  2. 42% of DC Young Black Men Said to Be in Justice System (p 1)
  3. Federal Cons Needn't Exhaust Administrative Remedies (p 2)
  4. Classification Does Not Violate Eighth Amendment (p 2)
  5. The Pen is Mightier Than The Sword (p 3)
  6. Deaf Inmates Certified as Class (p 3)
  7. No Room for Police State in America! (p 4)
  8. Editorial (p 4)
  9. Supreme Court Chides Ninth Circuit on Delays in Harris Execution (p 5)
  10. Prison Dentist Sues to Hide AIDS (p 5)
  11. Con Awarded $1,500 For Inadequate Book Access (p 5)
  12. Involuntary Medication Violates Due Process (p 6)
  13. Confiscation of Legal Papers States Claim (p 6)
  14. Confinement of Insanity Acquitees Who Have Regained Sanity Struck Down (p 6)
  15. CBCC Guard Arrested (p 6)
  16. NJ Prisoner Wins Censorship Suit (p 6)
  17. Inmate Assaulted by Guard Wins Suit (p 7)
  18. Prisoner Litigants May Be Shackled in Court (p 7)
  19. Test for Calling Witnesses at Disciplinary Hearing (p 7)
  20. Toward an Understanding of Today's Economic Terms (p 7)
  21. Disgruntled Reader Needs Barf Bag (p 8)
  22. Suit Being Filed Over CBCC Conditions (p 8)
  23. We Are Making Progress (p 9)
  24. Fully Informed Jury Project (p 9)
  25. Offers to Provide Legal Information (p 10)

New Ruling May Impact Prison Law Library Policies

By Ed Mead

Arecent decision by the United States Court of Appeals for the Ninth Circuit could have broad implications on policies governing the operation of inmate law libraries. The case addressed the common problems of proper training for inmate law clerks; redefining prisoner indigency requirements; the minimum amount of legal supplies that must be provided; and inmate access to photocopying facilities.

The case emerged when prisoners in the Arizona State Prison at Florence brought a class action suit against the Department of Corrections, pursuant to 42 U.S.C. § 1983, alleging that its policies concerning the prison law library denied them meaningful access to the courts. The district court found in favor of the plaintiff inmates and the state appealed, claiming that the lower court's injunction exceeded minimum constitutional standards. The Court of Appeals affirmed the lower court's decision in all respects.

One of the most unusual aspects of this case is that the court interpreted Bounds v. Smith, which held that the states must provide "adequate law libraries or adequate assistance from persons trained in the law," to mean that the Department of Corrections has an affirmative obligation to establish a training program for inmate law ...

42% of DC Young Black Men Said to Be in Justice System

More then 40 percent of the black men age 18 to 35 in the District of Columbia were "firmly in the grip of the criminal justice system" on an average day last year, according to a study by the National Center on Institutions and Alternatives (NCIA), an Alexandria, Virginia, based organization that promotes alternatives to incarceration.

"In effect, the social safety net has been replaced by a dragnet," NCIA President Jerome G. Miller said, "sweeping up the most energetic and vital segments of Washington's population into a criminal justice system capable only of further damaging future prospects for employability and productivity."

Using District of Columbia government reports, Dr. Miller calculated that 12,500 District residents were in local jail facilities or federal prison on an average day last year, and that 7,800 of those were black males of age 18 to 35. That represents 15 percent of all the black males in that age group in the city, he said.

Another 6,000 black men were on local probation, plus 3,700 on local parole and 1,300 on federal probation or parole. About 3,500 young black men were free on bond awaiting disposition of criminal charges ...

Federal Cons Needn't Exhaust Administrative Remedies

A prisoner in a federal correctional institution filed a civil rights lawsuit seeking damages only for alleged deliberate indifference to his medical needs resulting from a back operation and a history of psychiatric problems. The suit was brought pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), which allows lawsuits against federal officials for violations of constitutional rights. His suit was dismissed on the ground that he had failed to exhaust the Federal Bureau of Prisons' administrative remedy procedure.

This grievance procedure supposedly has rapid filing and response timetables to promote the efficient resolution of disputes over inmate grievances, but the regulation governing the grievance procedure dos not provide for any kind of hearing or for the granting of any particular type of relief. The dismissal of - the suit for failure to exhaust the grievance procedure was upheld by an appeals court, despite the prisoner's argument that he was not required to exhaust his administrative remedies because he sought only money damages which the grievance procedure could not provide. McCarthy v. Madigan, 914 F.2d 1411(10 Cir.1990).

The U.S. Supreme Court reversed this ruling, reinstating the suit, and holding that exhaustion ...

Classification Does Not Violate Eighth Amendment

Frank James was a probation violator in the Milwaukee County Jail in Wisconsin. He was attacked by a parole violator over a gambling debt and had his neck broken rendering him a quadriplegic. James filed suit under § 1983 claiming that jail officials had violated his eighth amendment right to remain free from attack on his person because of the jail classification system which housed probation violators together with parole violators without regards to their criminal histories. The district court ruled in defendants favor at trial and the Court of Appeals for the Seventh Circuit affirmed.

The Court of Appeals analyzed numerous eighth amendment cases involving the right of personal safety in prison. The court states that mere negligence to safety is not enough to violate James' rights. "Plaintiff must show actual intent or deliberate indifference on the part of state actors in order to make out an eighth amendment claim." It then defined deliberate indifference as "recklessness in a criminal subjective sense; disregarding a risk of danger so substantial that knowledge of the danger can be inferred." It states a prisoner normally proves such actual knowledge by notifying prison officials of the threat to his safety or by showing a ...

The Pen is Mightier Than The Sword

By John Adams

I'm a prisoner at the Washington State Penitentiary in Walla Walla; Washington. I've been incarcerated for more than a decade. In 1984, 1 began studying the law while fighting for my life after stabbing another inmate to death. Eventually, my criminal law studies lead me to civil litigation and my legal work consists also of challenging prison conditions and bringing damage claims against prison officials. Through all my years of "hands on" experience, petitioning the courts for redress, I can tell you with confidence: "The Pen Is Mightier Than The Sword."

The other day, I had received an unexpected surprise in the mail, Convictions Magazine, Volume I, Number 4. While reading the magazine, I ran across "Convictions Chronicles", on page 26. There is a short section titled "1991 Marked By Prison Uprisings." While reading about the eight prison uprisings in the United States and other parts of the world, I felt sympathy for the victims of the uprisings as well as anger toward the prisoners who participated in the uprisings, who played the game the swine's way.

At the Washington State Penitentiary, certain inmates brought suit against the Governor of the State of Washington ...

Deaf Inmates Certified as Class

Doris Clarkson is a deaf New York state prisoner who filed suit under 42 U.S.C. F 1983 because the women's prison at Bedford Hills, New York, lacked any type of facilities for deaf prisoners. At this point in the legal process the case primarily involves procedural issues, such as class certification, motions for dismissal by the defendants, claims of improper venue, etc.

The court held that the action is not mooted by Clarkson's release on parole and granted class certification with two subclasses consisting of male and female deaf prisoners. The court also granted the motion to intervene of two prisoners and denied similar motions by two other prisoners.

The plaintiffs allege that because of their hearing loss they are "in a prison within a prison," unable to communicate with others, receive medical treatment, participate in educational and rehabilitation programs, defend themselves in disciplinary hearings and exercise their rights to grievance, transfer, classification and good time procedures. The suit seeks injunctive and declaratory relief and is being litigated by the Legal Aid Society in New York City. See, Clarkson v. Coughlin, 783 F.Supp. 789 (S.D. NY, 1992).

No Room for Police State in America!

America is again being set adrift upon shifting sand, just when our economy is so fragile. And so the Police State enters its battle cry, "Let's get tough on crime!" Then we watch the prime time results. Anarchy momentarily explodes, then the police move in to "control the situation and restore order."

It is the job of the police to protect society.

Why have our Police Officials found it so convenient to attack and destroy the very foundation of our American `Heritage? I am referring to the United States Constitution.

The fact is my fellow Americans, it is the mentality of the Police State to strip individual citizens of their constitutional Rights. Such rights as freedom of speech; the right of citizens to be active participants in our government; the protection from police brutality, illegal arrest, search and seizure.

In historical times the Police State resorted to the manipulation of the masses by isolating special groups by labeling them as enemies of the state. Witch hunts, religious crusades, political hate groups, racism and other social gremlins are among the known ploys. Why were these things promoted? Pointedly ignorance, suspicion and the fears of the masses have always sat conveniently ...


Editorial Comments

By Ed Mead

Welcome to another issue of the newsletter. I've been so busy putting out a special issue of the PLN for prison law libraries across the country that I have not had much time to write my comments for this month. We are sending out a special version of the PLN to prison law libraries in all state and federal maximum and medium security facilities. That's about six hundred joints. We hope that by doing this we can increase our institutional subscriber base. If successful in terms of new subscriptions, this effort will help to alleviate a lot of our chronic shortages of money. Our incarcerated comrades can assist with this project by driving on your local law librarian to order one or more subscriptions to the PLN for prisoners at your place of confinement. Our institutional rate is just $25 per year.

These law librarians could be paying $198.00 for the Criminal Justice Newsletter, or $249.50 a year for the tenpage Corrections Digest, or $138.00 per year for the monthly jail & Prison Law Bulletin, or $30.00 for the 4-page monthly Crime & Delinquency News. The PLN contains a digest of ...

Supreme Court Chides Ninth Circuit on Delays in Harris Execution

California's execution of Robert Alton Harris - the state's first execution in 25 years - has highlighted tension between the U.S. Supreme Court and the Ninth Circuit U.S. Court of Appeals over the death penalty appeals process.

Judges on the Ninth Circuit issued four last-minute stays of execution for Harris, and the Supreme Court promptly rejected each claim made on his behalf and lifted each stay, with members of the court remaining awake throughout the early morning hours of April 21 to do so. By dawn, the patience of the supreme Court majority was wearing thin, and the court issued an unusual order prohibiting any further stays of Harris's execution for any reason.

"No further stays of Robert Alton Harris' execution shall be entered by federal courts except upon order of this court," the Supreme Court said, with Justices Harry A. Blackmun and John Paul Stevens dissenting. Harris was put to death in the gas chamber at San Quentin State Prison less than an hour later.

Observers on both sides of the issue said the order barring such actions by a lower court before they could occur was unprecedented, but disagreed about who was at fault, the ...

Prison Dentist Sues to Hide AIDS

A dentist who has treated patients at the Metropolitan Corrections Center, Chicago's federal prison, recently filed a lawsuit trying to prevent the Bureau of Prisons from disclosing the fact that he has AIDS to anyone except in medically justified cases.

In what lawyers say may be the first case in the U.S. of a health care worker filing suit to prevent disclosure of information on AIDS infection, the dentist is identified only as a bureau employee who is a health care professional.

The suit, filed by the Illinois American Civil Liberties Union lawyers, says the dentist fears he is in danger from inmates and is concerned he will be discriminated against and ostracized now that his AIDS infection has been revealed.

The Bureau of Prisons issued a press release saying the dentist had notified the bureau "that he has AIDS." The release said "there is an extremely low risk of HIV transmission to any of his patients," but said the agency was "in the process of notifying all the dentist's former patients of this matter. "A federal prisons official said the bureau intends to notify each of the approximately 2,800 patients the dentist treated at the ...

Con Awarded $1,500 For Inadequate Book Access

A prisoner housed in a maximum security building at a Delaware prison filed a lawsuit challenging the adequacy of the legal resources available to him. The court found the legal resources provided constitutionally inadequate and awarded him $750 in compensatory and $750 in punitive damages, as well as attorneys' fees ...

Involuntary Medication Violates Due Process

Christopher Breads is a prisoner in the Erie County Jail in New York state who was forcefully injected with psychotropic drugs by jail officials. He filed suit under § 1983 claiming his right to due process had been violated. The defendants moved for summary judgment which the district court denied.

The court held that there is a substantive due process right under the constitution to remain free from involuntary psychotic medication. The court noted that the defendants had not made a finding that Breads suffered from serious mental illness nor had the decision to medicate him been reviewed by another psychiatrist after the initial prescription.

The court held that because numerous issues of material fact existed, summary judgment was inappropriate and the case should proceed to trial. See, Breads v. Moehrle, 781 F.2d 953 (W.D. NY,1991).

Confiscation of Legal Papers States Claim

Charles Brownlee, a Wisconsin pretrial detainee filed a civil rights complaint, pursuant to 42 U.S.C. § 1983, after jail officials confiscated legal documents relevant to a law suit he had filed. That suit claimed he'd been denied access to a dentist for treatment of severe pain, and that such denial was in retaliation for his having complained about the jail doctor and his allegation that one defendant had loosed mentally ill inmates on him so he would be assaulted. The district court dismissed the suit as "frivolous" before the defendants could respond.

The Court of Appeals for the Seventh Circuit reversed and remanded. The court noted that a prisoner's complaint only need outline a violation of a statute or a constitutional provision and connect the named defendants to the violation in order to state a claim.

The court held that Brownlee's above claims were not frivolous and were entitled to a hearing on their merits by the district court. The court notes that most prisoner civil rights suits are frivolous but district judges must not assume all are and dismiss them by rote throwing "out the haystack, needle and all." See, Brownlee v. Connie, 957 F ...

Confinement of Insanity Acquitees Who Have Regained Sanity Struck Down

On May 18,1992, the U.S. Supreme Court struck down on due process grounds a Louisiana statute that permits insanity acquittees to be confined to a mental institution on dangerousness grounds until they prove that they are not dangerous. Once an insanity acquittee has recovered his sanity, the basis for holding him in a psychiatric facility has evaporated and he may no longer be held on thatbasis, justice White wrote for the 5-4 majority.

There are three problems with the state's attempt to perpetuate the defendant's detention on the basis of his dangerous antisocial personality, White said. First, assuming continued confinement were constitutionally permissible, the defendant could not be kept in a mental institution against his will unless the state conducted a civil commitment proceeding in which it proved the defendant's current mental illness and dangerousness. Second, at that hearing, the defendant would be entitled to the protections constitutionally required in a civil commitment proceeding. Third, the substantive component of the due process clause bars the state's action in the absence of either a criminal conviction or a finding of mental illness and dangerousness.

Justice O'Connor concurred in part and in the judgment. Justice ...

CBCC Guard Arrested

Edward Fulleton, 4-1 guard at the Clallam Bay Corrections Center (CBCC) in Clallam Bay, WA, was arrested at the prison and led away in handcuffs on April 17, 1992. Fulleton was a former foster parent who is charged in Lewis county with one count each of statutory rape in the first, second and third degree and indecent liberties.

Court records state that Fulleton began abusing a 7 year old girl in his care by fondling which progressed to sexual intercourse by the time the victim was 12. The investigation is continuing and he may be charged with additional counts involving at least 4 additional victims.

Fulleton is currently in the Lewis County Jail on a $150,000 cash bail bond.

Fulleton was hired by CBCC in 1989 and worked in various assignments including control 2 and IMU. CBCC public relations official Paula Norris claims there is no official reaction to the arrest but says, "It's surprising, that's all I know."

Peninsula Daily News, May 1, 1992

NJ Prisoner Wins Censorship Suit

In April, 1991, New Jersey DOC officials at the Trenton prison banned MIM Notes (journal of the Maoist International Movement) because it contained articles on oppression at Trenton. The DOC said all future issues would also be banned. One of the prisoners, Kevin Thomas, filed suit in state court challenging the censorship and won. On March 31, 1991, the New Jersey Court of Appeals ruled that the DOC had violated its own rules in censoring MIM Motes.

Political and revolutionary literature is a key effort in the struggle for progressive change in the Amerikan gulag and all efforts must be made to challenge prison officials efforts at censorship. MIM regularly reports on prison struggle around the country as well as providing news and analysis from a Maoist perspective. For more information write to: MIM Notes, P.O. Box 3576, Ann Arbor, MI. 48106-3576.

Inmate Assaulted by Guard Wins Suit

An inmate's suit claimed that he was beaten by a number of officers in the presence of the sheriff. The court found that the beating was unprovoked. It was possible that the inmate had been talking loudly, but "that was no justification for beating him."

"In this case, the ...

Prisoner Litigants May Be Shackled in Court

Winston Holloway is an Arkansas prisoner who filed suit under § 1983 claiming that living conditions in the state prison's segregation unit violated the eighth amendment. At trial the jury ruled in favor of prison officials on all claims.

On appeal Holloway claimed that he had been denied a fair trial on his eighth amendment claim because the jury saw his prisoner witnesses and him in shackles. The Court of Appeals for the Eighth Circuit disagreed and affirmed the jury's verdict.

The Court of Appeals held that the shackles added nothing to the case that was not known to the jury because Holloway and his witnesses appeared in prison clothes before the jury, the nature of the case and claims made it apparent that Holloway was a prisoner. The plaintiff's status as a prisoner had no bearing on his civil rights case and the judge issued a cautionary instruction to the jury that they disregard the shackles in considering the case. Thus, Holloway was not deprived of this right to a fair trial by being seen in shackles by the jury.

The court went on to add that this case does not mean that the use of shackles ...

Test for Calling Witnesses at Disciplinary Hearing

An inmate was found guilty of fighting and creating a dangerous disturbance on the basis of his being identified in a photo of the fight by an unidentified person. At the disciplinary hearing, he denied the charges and requested the name of the unnamed source who had identified him from the photograph and the names of the inmates he had allegedly fought with. He also asked for more time to prepare his defense. All these requests were denied.

An appeals court has found that the prisoner is entitled to a new disciplinary hearing because he was not given the name of his accuser, nor did the Department of Corrections provide any reason for its failure to disclose this information. Failure to either disclose the name or the reason for nondisclosure violated the Department of Corrections' own rules and the inmate's right to due process of law. See, Shea v. Edwards, 581 N.E.2d 822 (Ill. App. 1991).

Toward an Understanding of Today's Economic Terms

By Ed Mead

We all hear so much about economic indicators these days, but do any of us really understand anything about them, or what they mean? How important are terms like the Consumer Price Index, Balance of Trade figures, Total Money Supply, Private Housing Units Started, Industrial Production, New Orders Durable Goods, the Prime Rate, Gross National Product, Unemployment statistics, and many other esoteric forms of financial jargon? Which of these terms are important, and which are merely smoke being thrown in our eyes by the government in an effort to conceal the actual state of the national economy? Today, while the economy is in such a mess, it is important for people to have some minimal grasp of existing economic realities. I do not claim to be an expert in these matters, although I can share with you some of the conclusions I've reached as a result my observations and experiences.

All of the terms mentioned above, while certainly of some minim al value, are basically useless when trying to get a firm grasp of the shifting trends in the nation's economic health. One of those figures or another may go up or down, but they ...

Disgruntled Reader Needs Barf Bag

After reading your March 1992 issue of the PLN I was thoroughly disillusioned, disgusted, and very disappointed that PLN would allow a prisoners' news source to be used to propagate something very harmful to everyone incarcerated [in this state]. I am speaking of the article on HB 2834 by Carrie Roth. It was to me a sell out. It was originally bad legislation and revised it still smelled of dead fish.

When I heard rumors that things weren't correct with PLN I defended the newsletter, but now that I've seen proof, I can't wish it away and make it disappear or defend PLN because of HB 2834 guilt evidence.

I am liberal and very broad minded, but I can't forgive or come up with justification for not only Carrie's conduct but for PLN's. It even goes beyond whether we have different ideas or opinions. This is serious rubbing elbows with the enemy. It makes a thinking man wonder, how can we be supportive of something that's against our interests?

I'm not making a judgment, but it paints a picture of only one color, black (personal interest black) . And it can't be ...

Suit Being Filed Over CBCC Conditions

On April 1, 1992, Troy Talbot, a prisoner here at the Clallam Bay IMU [Intensive Management Unit], was taken to the shower handcuffed and on a doggie leash. Prison guards had left the supply closet in the shower unlocked and Troy got hold of the fire hose and hosed down the unit, including various guards. Only after being promised to be treated like a person did Troy surrender the fire hose and go back to his cell.

At the same time Troy was doing his thing, the red pod in F unit (and to a lesser degree the other two pods as well) was going off, covering all their windows and throwing, literally, shit on the tiers. The next morning these prisoners were gassed and brought to E unit.

Those of us in E unit were placed on sack lunches, breakfast wasn't served until noon and lunch a half hour after that. When the prisoners were brought to E unit they were strip searched by female guards. As result of being stripped by the female guards, six or seven men in my pod decided to block their windows and such. Two barricaded their doors. Early in the morning on ...

We Are Making Progress

A year ago, when the HOW board voted to make a donation to Prisoner's Legal News, we wrote to tell you how crucial we believe prison reform is in our country today and how excited we were about your ground breaking work. We were delighted with the early issues of PLN and wanted to do what we could to assist your struggle. We felt that your publication would continue to evolve and hoped it would eventually become a significant instrument in the struggle for prison/ community alliances as well as prison reforms.

You have not disappointed us. In fact, you have exceeded our most optimistic expectations. Accordingly, we are sending another donation. We also send you our highest commendations for the nearly impossible job you do with such dignity and commitment, under considerable duress, and with such limited resources.

As you know, PLN has inspired the creation of a regular column in our quarterly Secular Humanist Press on prisoner and justice system issues in which we frequently use excerpts from PLN and always include your subscription prices, addresses, and volunteer needs.

Your work addresses and helps to fill many urgent needs. Keep up the struggle with the knowledge that ...

Fully Informed Jury Project

I wanted to write and say your newsletter is alright! I like being able to see the newest decisions that are coming down, to see how much more rights we are loosing, and losing them we are. I have something your readers might be interested in. Yesterday I received a packet of material from Fully Informed Jury Association (FIJA), P.O. Box 59, Helmville, MT 59843. Its a couple of guys who started raising hell about how we have lost our rights in the last 200 years as to jurors knowing their rights. Many years ago the jury was able to judge the law and evidence and, if they didnt like the law that a defendant was being tried under, they the people could vote Not Guilty. Not like now days where the judge says you must use these rules (instructions) to follow, and find him guilty if he fall within them. We all know that our jury system is just a joke. It is here in Minnesota anyway. The judge gives instructions that make it hard to come back with a not guilty verdict.

Write to them for information if you would like. Convicts have lots of insight into ...

Offers to Provide Legal Information

Offers To Provide Legal Information

I'm an incarcerated paralegal and am always on the lookout for new information that can aid me in my efforts to help others that are in this system. As it's well known fact that the system is in very serious trouble and the officials don't want to do anything to correct it, and that is where the jailhouse lawyers come into the picture. Maybe we can apply enough "heat" in the right places and help out in Costellamo v. Dugger and any other cases that may arise with the same overall issues.

I know one thing, I'm tired of the system putting all the blame on the prisoners when in fact it is they who are helping to retain these present conditions. Sure, if there wasn't any crime there would not be a need for prisons, but there has been crime for almost as long as human life itself.

There should be some way to curb the actions of the Department of Corrections. For instance, if someone (escapee) goes out and commits another crime, they take it out on the whole prison population, as if it was the population who ...


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